SINGLE-SEX FACILITIES POLICIES
Employment Tribunal Scrutiny of Single-Sex Facilities Policies
In Hutchinson and others v County Durham and Darlington NHS Foundation Trust, the Trust operated a policy allowing transitioning employees to use changing rooms in line with their self-declared gender identity. A trans woman employed by the Trust began using the female changing rooms.
Ms Hutchinson and several other female nurses working in the Day Surgery Unit at Darlington Memorial Hospital raised concerns about being required to share communal female changing facilities with a biological male colleague. The Trust declined to amend its policy, instead maintaining that it complied with equality law. The employees subsequently brought claims of harassment and indirect sex discrimination.
Tribunal findings
The tribunal made clear that its analysis of the Equality Act 2010 had to follow the Supreme Court’s recent ruling in For Women Scotland v The Scottish Ministers, which confirmed that statutory references to “sex” are to biological sex. On that basis, the tribunal went on to determine the claims as follows.
First, it found that requiring the claimants to share a female changing room with a biological male trans woman — and failing to address their objections — amounted to harassment related to both sex and gender reassignment. The tribunal held that this conduct violated the claimants’ dignity and created a “hostile, intimidating, humiliating and degrading environment”.
The tribunal was also critical of how the Trust responded to the nurses’ concerns. It noted evidence that managers had referred to the need for the claimants to be “educated on trans rights” and to “broaden their mindsets”, and that alternative facilities provided to those who objected were inadequate and unsuitable. This, the tribunal concluded, compounded the harassment.
Secondly, the tribunal upheld the claim for indirect sex discrimination. It identified two relevant provisions, criteria or practices (PCPs):
allowing access to single sex changing rooms on the basis of self-declared gender identity; and
prioritising the perceived rights of transgender employees to use facilities aligned with that identity over the rights of other employees to single-sex facilities.
Although these PCPs applied on their face to both men and women, the tribunal found they placed women at a particular disadvantage. Women were more likely to experience distress, fear or humiliation when required to share communal changing facilities with members of the opposite biological sex. The Trust was unable to show that the PCPs were a proportionate means of achieving a legitimate aim, and the indirect discrimination claim therefore succeeded.
What should employers take away?
In practical terms, employers should carefully review policies on changing rooms, toilets and other single-sex spaces, and ensure they are robust, evidence-based and sensitively implemented.
As this is a first instance decision from the employment tribunal this does not create a binding precedent. However, it provides an indication of how these types of claims could be viewed by the tribunal and is a clear warning that policies that prioritise one set of protected characteristics without proper consideration of impact, justification and alternatives may not withstand tribunal scrutiny.
If you would like to discuss how this decision may affect your organisation, or if you would like us to review or update any of your workplace policies, please get in touch — our experienced employment team would be very happy to help.
